FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 13(9), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : HSE MID-LEINSTER (REPRESENTED BY HSE) - AND - A GROUP OF WORKERS DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Appeal against Rights Commissioner's Recommendation R-083515-Ir-09/RG, R-083516-Ir-09/RG, R-083519-Ir-09/RG
BACKGROUND:
2. The case before the Court concerns a claim by the Workers in relation to the appeal of Rights Commissioner's Recommendations R-083515-Ir-09/RG, R-083516-Ir-09/RG and R-083519-Ir-09/RG. The dispute concerns the alleged non-application of an agreement when the Workers transferred to a new location as a result of the closure of their previous place of employment. Remaining staff transferred to an alternative location, separate to that of the Workers concerned in this dispute. Management contends that the agreement was applicable only to staff that transferred to the alternative location and was therefore not applied to the Workers in this dispute.
The dispute was referred to a Rights Commissioner who issued her Recommendation on 9th March 2010 as follows:
"On the basis of the evidence I find and recommend as follows:
The parties agreed there is a written agreement covering all employees, other than the three Claimants, transferring at their existing terms and conditions of employment from Baggot Street Hospital. There is no written agreement covering the three Claimants although both parties confirmed that the verbal agreement in relation to the three Claimants has been implemented.
Both parties have confirmed the application of the assimilation terms has the following benefits to the Claimants:
- Their pay increased on assimilation and will continue to increase by yearly increments to the maximum of the Clerical Officer Pay Scale including the LSI’s.
- Their Annual Leave increased from 23 days to 25 days per annum and this will continue to be of benefit each year. They are also entitled to 2 additional Privilege days each year.
- Their working hours have reduced from 39 hours per week to 33.75 hours per week.
- They are now eligible to compete in grade V promotion competitions.
- They have access to the Flexi system, and can if they so wish to work up to one day and a half flexi leave per month.
- They are entitled to more favourable sick pay scheme.
In April 2010, the Workers appealed the Rights Commissioner's Recommendation in accordance with Section 13(9) of the Industrial Relations Act, 1969. A Labour Court hearing took place on 3rd November, 2010.
WORKER'S ARGUMENTS:
3. 1. There is no dispute that the Workers' terms and conditions of employment greatly improved upon transfer to their new location and grade.
2. There was a verbal agreement between the Workers and Management that the written agreement applicable to the remaining staff transferring to an alternative location would be applied to them also.
3. Management have acted in breach of this verbal agreement as it was not applied to the Workers.
EMPLOYER'S ARGUMENTS:
4. 1. The Workers have benefitted from enhanced terms and conditions of employment whereas remaining staff transferred within their grades with no apparent changes to terms and conditions.
2. The once-off written agreement was applicable only to the remaining staff exclusive of the Workers concerned in this claim.
3.The concession of this claim could have further cost-increasing implications for the Employer.
4.Management further contends that the concession of this claim would be unfair on the staff that transferred within their existing terms and conditions of employment.
DECISION:
The Court has carefully considered the oral and written submissions of both sides in this case.
The three Appellants agreed that the effect of their redeployment from Baggot Street Community Hospital to the Civil Registration Office in Joyce House was extremely beneficial to them financially and gave rise to a very considerable improvement to their terms and conditions of employment. By contrast, the terms of the Relocation Agreement provided for comparatively very modest once-off compensation for staff that transferred with their jobs to the Clonskeagh Hospital Campus following the closure of the residential element of Baggot Street Community Hospital. In every sense, therefore, the three Appellants fared very much better than their fellow workers who came within the scope of the Relocation Agreement. Accordingly, the Court takes the view that there are no grounds upon which it could further benefit the Appellants by extending the terms of that Agreement to them in addition to the very considerable benefits they already have and will continue to receive into the future. To do so would be unfair both generally and in the extreme to the other staff.
Accordingly, the Court rejects the appeal and upholds the Rights Commissioner’s Recommendation.
The Court notes that the three Appellants are strongly of the view that they were led to believe that they would be encompassed by the Relocation Agreement and would benefit from its terms. The HSE advised the Court that no one on the management side had advised them that if they accepted redeployment to the Civil Registration Office they would not benefit from the Relocation Agreement. The Court accepts that this was an oversight on the part of those involved. If they had been so advised it is very unlikely that the Appellants would have decided to reject redeployment to the Civil Registration Office. Indeed, the Appellants told the Court as much and in that event it is clear that the entire subsequent proceedings would have been avoided.
In light of the substantial levels of redeployment that will be necessary within the HSE over the coming years steps should be taken to ensure that all affected staff are fully informed, in writing, of their redeployment options and the attendant terms and conditions attaching there to.
The Court so decides.
Signed on behalf of the Labour Court
Brendan Hayes
15th November 2010______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Sharon Cahill, Court Secretary.